What action would you as an individual take if:

For twenty seven years your By-laws state explicitly that all checks will be signed by the President and the Treasuer. You have brought this up to Board members, individual owners, and at countless Board Meetings. You have attempted to get this changed or at least insure it happens when we retained a lawyer to help reword out Documents. It is my understandiong that the manager (non-owner) signs all checks and utilizes association credit card. We have never had an audit it all that time.

Now before you start saying get a lawyer, give it some thought.
#1. President and treasuer have always been absentee owners.

#2. The is a financial report every six months which show books balance.

3. Our managers have never be questionable as far as trust is concern.

4. Each new board member vows to change this, and they talk and talk about it, but the practice continues.

5. If you make a motion, it is voted down be a number of reason, primary one is apathy and close second, it seems it will make someone mad.

6. As stated we spend lots of money but it shows ewxpenditures to cover collections in the reports and supported by bank statements.

Despite all this doesn't it seem smart to abide by covenants, for the Board to not open themselves to legal problems regards Fiduciary responsibilities.

And last: Does all this repeated conduct by the Boards and allowed by the members negate ANY fiscal responsibility.

What do you think, especially all the Lawyer types and legal eagles.

if you can't get the by-laws amended, like roger suggests, and no one listens from among the other owners, i would forego the lawyer: it's just money down the drain.

You might simply write up a statement that you, having read the bylaws such and such, do hereby make an official notice to the board, association records, god and the flying spaghetti monster that you have attempted to get the board to operate properly, but have been rebuffed. As such, you hereby declare absolute sovereign immunity from any lawsuits that may arise in teh future, and absolve yourself of any financial resposnibility for lawsuits, etc. that may embroil the HOA as a result of the board's refusal to follow the rules. Have it read or recorded in the meetings minute somewhere, get a registered receipt it was delivered to the board, etc...

Basically, it means nothing, and won't do a thing for you later, but it may make you feel better.

RobertR1: Again, you are raising concerns which cause us to think hard...

I'm not a lawyer but here goes. In your scenario you state that legal documents restrict check signing to only President and Treasurer. Further, you state..."You have attempted to get this changed or at least insure it happens when we retained a lawyer to help reword out Documents." Not certain we know what the 'this' is that you want to get changed???

Further, you state..."my understandiong that the manager (non-owner) signs all checks and utilizes association credit card. We have never had an audit it all that time." So, from this I take it that based on the clear document dictates, they (docs) are not being followed (?) as far as authority to spend association funds.

And, lastly, NO! it does not negate Board responsibility. The documents clearly state how to govern and when to govern. They are just not being followed. I sincerely hope this is just a hypothetical case, and not one you know of!!!

Joe,
Never had a independent audit. Is their any other kind?

What is your take of all this disregard of the covenants over the years regard the responsibility of all the owners comittment to Fiduciary Responsibility? Can ignoring the covenants negate fiduciary responsibility of the members?

Bruce,
I understand fullly and our covenants state the records will be available for review.
But if your association ignores the boards violately the documents, how does it help to read the records if the enforcement of the requirement to keep these records are ignored.

Please comment on the Fidicuary responsibility of the members, do they have have one?

I was on the comittee to amend the documents and sat in the Lawyers officer and raised this subject. It was discussed with no support from the manager or President and when the changes came out, no change was made. As said previously ou Commmittee functions seem to start out ok and then when the nitty gritty is finally done, some committe members semm to be left out and some different ideas are done.

What is your take on Fiduciary responsibility of the members in total.

Paul,
Clarify:
The "this" i refer to is the effort I made to have this (who signs the checks) addressed at the lawyers when I brought the subject up. At that point after the changes I was not sure who signed the checks until a new Board member told me. I suppose he could be wrong.......with the President and Treasuer not on site and nothing being mentioned thjat some deal was made to have this done electronically, which I know can be done, I really believe I am on track.

Also, you might comment about someone saying, a bank wouild not accept checks from an association signed by any other person than the ones dictated in the covenants.

I doubt very seriously that many banks really give a damn about the association documents until maybe they have to take over a mortgage.
I know the bank can request specific information about the associations records but don't think it includes who can sign checks. Maybe when the account opens first they may want to have singnature cards, but if the do, as time goes on, I bet they are ignored. I also suspect our manager is on some list if the Board Member is right, if their are other names they are not required somehow by the bank.

Robert, you're right about the bank not caring about the signatures --- unless it was brought to their attention that they've allowed checks to be cashed that technically were invalid - might at least wake up a few people.'

Joe

Robert,
I agree with you completely. If your bylaws state that your President and Treasurer should sign checks, then that's what you do. In our HOA, the property manager cuts the check, but they are signed by the treasurer and president. I'm amazed that your homeowners aren't up in arms over this practice. I would expect that your state laws also have something to say about this.

I hope your board has good D&O insurance. Of course, that doesn't help if your board knowingly violates its documents or the law. Did you say that your association has a lawyer and he lets this go on?

I'm afraid the best advice I can give you is what you stated at the begining. Get your own lawyer; preferably someone who specializes in HOAs.

RobertR1: This is sad news, the fact that this is YOUR association. You are an alright fellow in my book with some good reasoning and ways to implement changes for the better. It is your Board who is putting themselves in jeopardy by not following the very minimum of dictates from the docs--Pres. & Treas. are to sign checks. No, the bank will not get involved with the docs--but, they will ensure that the signatures on the checks match up with the Bank Signature Card completed by your Association's government. It is not their responsibility if your Assn. is not following clear document dictates.

If you search prior topics here you will see over and over to never allow a Manager to sign Association checks, much less have access to an Association credit card.

Now, you have stated that the 2 Board members are absentee owners. I would go out on a limb to state--therein lies the problem. It's not the docs which are the problem, but the absentee owners who hold Board positions. Not the best way to get business done according to the docs, is it?

I know you have stated prior that your assn. deals with owner apathy and I can understand in trying to combat apathy year after year that your assn. would allow absentee owners to be Board members. Is this really the only recourse you have?

The day may come soon when a 'new' owner will become an assn. member who is savvy to what is being done here and will finally call the shots on the errant Board and its members. Not hoping for it, mind you; just letting you know that is a realistic possibility.

It sounds like some important decisions have been wrongly made and year after year continued which reflect the "easiest road to take", all the while ignoring what the legal docs state. And, it will only work until the day comes when it won't anymore!!! Be prepared!

Ours is an either-or situation, so both the treasurer's and president's signatures are not required. The "either-or" takes care of when one of the two individuals is not available.

As for the checkbook being taken care of by the property manager, I have no problem with that. The fees are collected buy the property manager and deposited into our account. We (the entire board) get a monthly report that breaks down every fee collected by every homeowner (so we know if anyone is delinquent) and every expense and every check. Typically, it's about a half-inch think full of financial data. As far as our treasurer goes, we couldn't ask for anyone more diligent. Maybe we're lucky. At almost every meeting he "beats up" the property manager over some, seemingly minor, accounting boo-boo or other.

Robert,

Yup. Our property manager told me just the other day our board is more dedicated than most she deals with. We're relatively new to all homeowner control, so maybe that's why. Last fall at our first board election, there were eleven candidates for five positions on the board. The comment made at the time by our attorney, who represents several HOAs, was that was unusual.

We are fortunate in that all of our board members are serious and dedicated. Our treasurer has "been there, done that", having prior experience on other HOA boards where he lived. I have had some public service experience and past experience on committees and such, including drafting and revising bylaws, so parliamentary procedures, bylaws, statutes, and such are not new to me.

Judging from the number of posts I'd say you've been around awhile. To have to deal with an HOA that is so "loose" (and I use that term loosly; no pun intended) all that time must not be easy.

Isn't there some way you can dump the officers/board members and elect someone who would be more dedicated, or is it that the homeowners are just that apathetic?

Bruce,
From the depths we were in 1990 to today is a huge leap forward. A lot of our problems in this condo is absentee ownership, no significant # of full time residents and absentee board members and personal agendas to renting property. It has been a long forward and backward fight. I really have some hope now that a few of us have the technique and desire to change things around. We do know our faults, even if some of the Board has always felt we are wonderful. We have been lucky in some sense, and unlucky in others, we aren't too bad but for the time and effort taken to get this far it is a woeful accomplishment.
The place (Real property) makes up for a lot and has been our saving grace.
Next year will be better starting after our annual meeting and the following year I feel sure most all the ducks will be in line and we can do what is necessary in a relatively short time. Of course, I'm an optomist even though I am 77.